March 4, 2013

Recently we reported the 2012 fiscal year numbers from the Equal Employment Opportunity Commission (EEOC). Coming in at #1 are retaliation claims, which have held this spot since 2010 surpassing race discrimination as the most common type of charge filed.

What is unlawful retaliation? Generally there are three items that must be established by the employee:

1) He/she engaged in protected activity;

2) Employer took some adverse employment action against him/her;

3) There is a connection between the protected activity and the adverse employment action.

You may be curious, as I was, in finding out why these types of claims have been on the rise. After completing some research, here is what I found.

Retaliation – different than harassment or discrimination – is relatively easy to establish.

The burden of proof may make it difficult to overcome a retaliation claim without a trial.

Once at a trial setting, jurors tend to relate easier to the allegation of retaliation. After all, who hasn’t felt like they have been retaliated against in the workplace at some time? It”s something most jurors can relate to without having to review a lot of evidence.

The Burlington Northern & Santa Fe Railway Co. v. White 126 S. Ct. 2405 (2006) decision by the Supreme Court established a lowered standard that claimants must prove to win a retaliation claim. Additionally, protected activity does not only concern the individual but also any protected activity that he/she is associated with.

So what are you to do? To begin, employers should institute formal anti-retaliation policies and complaint procedures. Having the policy is not enough, so employers should also provide training and respond to any claims immediately. Prior to taking adverse actions against a claimant, make sure a thorough review is completed. By exercising caution when dealing with claimants, documenting poor performance, and enforcing policies consistently, employers can effectively reduce the risk of lawsuits and damages.

If you need more information or resources regarding anti-retaliation policies, give us a call. We have a number of helpful resources available!